Public Bill Committee

[Mr. Eric Illsley in the Chair]

Jim Fitzpatrick: On a point of order, Mr. Illsley. It was brought to my attention that I gave out some potentially misleading information about the proposed harbours threshold in Tuesday’s debate on amendments Nos. 81 and 82.
I referred in my response to the analysis and modelling carried out by the Department which supported the proposed thresholds. I now understand that, while analysis was done through broad assessments before the proposed thresholds were set, it did not include any formal modelling. Modelling carries a specific technical meaning that does not apply in this case.
I hope that that clarification is helpful to the Committee, in the interest of setting the record straight. I apologise if my comment caused any misunderstanding. I have written to Sir John, the Clerk and the hon. Members for Rochford and Southend, East and for Beckenham.

David Jones: On a point of order, Mr. Illsley. I previously raised the matter of the Welsh framework clauses that are to be included in the Bill. I understand from discussions via the usual channels that it is now proposed that the new clauses will not be produced until towards the end of the discussion of the Bill. My concern is that the new framework powers may have an impact on other provisions that have already been discussed. I seek your guidance Mr. Illsley, as to whether that is a proper method of proceeding, given the impact it may well have had on previous discussions.

Eric Illsley: I am grateful to the Minister for his intervention and correction.
With regard to the Welsh clauses, I am advised that as there are no new clauses on that matter yet, it is not a point of order for me. However, I am sure that the Government will have noted what the hon. Member for Clwyd, West said, and perhaps discussions through the usual channels might elicit further information. Unfortunately, it is not a point of order for me.

Clause 38

Local authorities for purposes of section 37(1)(b)

Amendments made: No. 51, in clause 38, page 18, line 33, leave out ‘district council’ and insert ‘county council, or district council,’.
No. 52, in clause 38, page 18, leave out lines 34 and 35.—[John Healey.]

Question proposed, That the clause, as amended, stand part of the Bill.

Jacqui Lait: I have a brief question. We have agreed to amendments that add county councils to the clause. The thought crosses my mind as to why unitary and metropolitan local authorities are not listed as well. If the Minister gives a quick answer to that point, I will be happy to move on.

John Healey: Of course I will. This issue was touched on when it was raised by the right hon. Member for Skipton and Ripon in an earlier debate. The short answer is that, for the purposes of legislation, those authorities are already covered under the councils that are included in the Bill. Our concern was about two-tier areas, where county councils are also involved. That is why we tabled the amendments.

Question put and agreed to.

Clause 38, as amended, ordered to stand part of the Bill.

Clause 39

Categories for purposes of section 37(1)(d)

Daniel Rogerson: I beg to move amendment No. 170, in clause 39, page 19, line 5, at end insert ‘, or adjacent land’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 171, in clause 39, page 19, line 8, at end insert ‘adjacent land, or’.
No. 172, in clause 39, page 19, line 10, at end insert ‘adjacent land, or’.
No. 173, in clause 39, page 19, line 11, at end insert ‘or adjacent land’.

Daniel Rogerson: I welcome you back to the Chair, Mr. Illsley, and back to our deliberations about various clauses, where they will appear and the important issues under consideration.
The amendment would add “adjacent land” to the provisions of the clause. We are talking not about loft conversions, but about fairly major developments. It may be clearly understood by most that people with an interest in property and land adjoining a development will be consulted, but I am not sure that the clause is clear enough about who should be involved in the consultation.
The amendment would ensure that the provisions for people who have any of the interests set out in the clause because of land that is directly affected also apply to those who have an interest in neighbouring land. Clearly, there will be differences in what counts as adjacent land. If there is a large holding, adjacent land could be a considerable distance away from the development or it could be relatively close. I want to explore whether the ministerial team can justify not including the amendment, in the hope that anybody who will be affected by such a development will have the opportunity to be fully involved in the consultation.

Jacqui Lait: Welcome back, Mr. Illsley. You sound a lot better than you did on Tuesday.
I will add some comments in support of the amendment. We have made it clear that we are concerned that consultation is as wide and proper as possible. The purpose of the amendment is to ensure that anybody who could be understood to have an interest in the development is consulted and can make representations. On that basis, we support it.

John Healey: I hope that I can give the sort of explanation that has been asked for and that the hon. Members for North Cornwall and for Beckenham will see that the amendment is not necessary to meet their concerns.
In addition to clause 42 on the duty to consult the local community, clauses 37 to 39 set out a duty to consult people and bodies that would be affected by a development. That includes local authorities and anybody who might be entitled to a claim for compensation or for nuisance. Where a development would have a material detrimental effect on adjacent land, those with an interest will automatically be consulted.
As the Committee is aware, there is a broad power to prescribe statutory consultees. My hon. Friend the Member for Sheffield, Attercliffe will be interested to know that we will specify statutory consultees for certain sorts of infrastructure—we had the same argument about local transport authorities in our previous sitting.
The regulations will ensure that those bodies that should be consulted will be consulted, although we will not require consultation if they are unlikely to have an interest. In drawing up the draft regulations, I will ensure that we consider the points made by members of this Committee.
The hon. Members for North Cornwall and for Meirionnydd Nant Conwy were concerned about whether those living close to a development that could be detrimental would be consulted. The answer is that under common law, people in possession of property—landowners or tenants—are entitled to the quiet enjoyment of their land. If someone interferes with that quiet enjoyment by creating smells, sounds, pollution or any other hazard that extends beyond the boundaries of the property on which that activity is taking place, the affected party may be able to claim on the grounds of nuisance.
Clause 35(5)(c) provides that such people should be consulted. Together with other provisions in the Bill, it will capture the vast majority of people about whom the hon. Member for North Cornwall is concerned. I hope that that reassures hon. Members.

Daniel Rogerson: I am grateful for the Minister’s reply. However, he has not reassured me. I am clear that the clause sets out specific definitions of what constitutes a nuisance and he said that it would capture the vast majority of people affected, but we need to legislate for everyone.

John Healey: I was conscious that we should not double back over ground that we have already covered, but people living in the vicinity who would not be statutory consultees will be included in the pre-application consultation and be able to put their views to the promoter, who will carry out the publicity. They will also have the opportunity to put their views to the infrastructure planning commission when it considers the application. I hope that the hon. Gentleman understands and accepts that point.

Daniel Rogerson: There are clear provisions in clause 39 for people who have an interest in the land, but people who are not resident in the area may also have an interest. The same provisions should also apply to those who have adjacent land who may not be directly aware of what is going on in the community, although they have a long-standing interest because of ownership of adjacent land or other rights to it.
The Government have felt it necessary to apply the provisions to those who have a direct interest in the land affected, which implies that things may be going on above and beyond the standard consultation. If that is so, and extra effort is being made to ensure that pre-application publicity reaches people who may not reside in the area but have an interest in the land, I am concerned that the proposal is not extended to people who have an interest in adjacent land. I am thinking of cases of people or associations who own patches of land that they do not visit very often, therefore they would not see notices or publicity in the local paper. The Minister has not reassured me on those matters.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Question accordingly negatived.

Clause 39 ordered to stand part of the Bill.

Clause 40

Timetable for consultation under section 37

Elfyn Llwyd: I beg to move amendment No. 62, in clause 40, page 19, line 35, leave out ‘28’ and insert ‘56’.
This is a fairly straightforward amendment, which does not need much explanation. The timetable for consultation is clearly set out in the clause. Subsection (2) states:
“A deadline notified under subsection (1) must not be earlier than the end of the period of 28 days that begins with the day after the day on which the person receives the consultation documents.”
Knowing local government as I do, 28 days is not exactly a lifetime, and this is very much a probing amendment to get the Minister to reassure the Committee that normally we will be looking at a longer period than that. I know it is difficult for him to speculate on the matter, but my concern is that local government might not be up to speed. Local authorities are often overworked and for all I know the measure may mean a lot of extra work for them. I have suggested 56 days, although it could have been longer or a figure in the middle. I simply want to know what the Minister foresees will be the median time when the notices will be issued.

Jacqui Lait: I support the need to probe the Minister on the matter. The hon. Gentleman makes a point about the speed at which local government can move, but I am conscious that there are people for whom a deadline of 28 days could be exceedingly difficult. It is not beyond the wit of man or woman to work out that should it be a busy time on the farm—because so many of these infrastructure projects are likely to be on farming land—farmers will have other things that they need to do rather than responding to an application that would affect them.
An elderly person whose land was affected could, as we know from our constituency work, take a lot longer than the time specified to respond. I have noticed personally that as people get older it takes them a long time to consider a matter and get their heads around its implications before they can take action by obtaining legal or other professional advice. I am generally supportive of an extension on the grounds that we want to ensure that the pre-application process is as effective as possible—a point I have made before—and we are coming to amendments that try to make it more effective. However, if the process is constrained too tightly its effectiveness might be lessened and there might be more cause for complaint, which could be legal or in the form of a complaint at the inquiry. That would lead to an inevitable delay, and the purpose of the Bill is to reduce those delays. If the Minister could reassure us of his intentions on the provision, I should be happy not to press the amendment, as, I am sure, would the hon. Member for Meirionnydd Nant Conwy.

Daniel Rogerson: I join hon. Members in raising the issue of time constraints. As the hon. Lady has just said, we are dealing with well-resourced and well-funded companies or public bodies that are pursuing development and have recourse to legal and planning advice, and although we might not want to talk in confrontational terms they are up against local people and individuals who do not have such advice. To expect those local people to fall in line with a tight time scale of 28 days is asking a great deal.
Factors such as periods of illness or the pre-consultation stage happening during the height of the holiday season, when people could be away for two or three weeks, could affect someone’s ability to respond. If the whole point of the pre-consultation stage is to ensure fairness, openness and that everyone has a chance to have their say before moving into the formal application, we ought to allow greater time to get it right.
Reflecting on the evidence that we received before we began our clause-by-clause deliberations, hon. Members will remember that the gentlemen who represented National Grid and power transmission said that for them the key was to know when an application would be decided. They need to know the timetable so that they have some sense of hope that the application would be resolved at some point. It does not necessarily have to be done in five or nine months or whatever, so we do not have to focus too much on driving forward the time scale; the important thing is that people are aware that there is a time scale and will work to it. With that in mind, I hope that the Minister will consider this and future amendments that address the time scale and its impact on people who have to live with the development for a long time, and ensure that they can play a full part in the pre-application consultation.

John Healey: Clearly, consultees need sufficient time to respond to a promoter’s consultation, but it is equally important that there should be an expectation and requirement that they give the advice or information that a promoter needs to develop their proposals in a timely manner. It could be that someone preparing an application would be dependent upon a statutory consultee, such as a local authority, for specific information, so the principle of having a specific time period to help concentrate the mind and ensure that happens is important. For those who commented on the White Paper, the belief that a time limit was important was almost universal.
For promoters and many statutory consultees, the formal pre-application consultation is unlikely to be either the start or end of involvement in the process. In most cases, the promoter is likely to have been in touch to consult them beforehand and will continue to do so during the process. After the pre-application consultation period, any statutory consultee is likely to continue to be involved in the process of considering an application.
To be clear, the 28 day period is the statutory minimum, and I think that the hon. Member for Meirionnydd Nant Conwy understands that point well. It is obvious to all members of the Committee that big infrastructure projects will be more complex than other projects, and there may be a strong case in such circumstances for a longer pre-application consultation period. In such cases, the promoter may decide that it is appropriate and in their interests as well.
Of course, the commission has the power to give guidance about how to comply with the consultation, and may decide in specific circumstances to advise a longer consultation period if it believes that would be helpful. Obviously, a promoter would want to take that into account, not least because the commission will decide whether an application is fit for consideration, so any advice the commission may give will be telling at that point.

Elfyn Llwyd: As always, the Minister has been helpful, and I am sure that what he said has been noted. However, if an individual, for whatever reason, had been absent for a good part of the 28 days, would they be able to apply to the IPC or to someone, to say, “Look, due to extenuating circumstances I have not been able to take advice. I have not been able to look at this properly. Can I, therefore, apply now for an extension of the period within which to respond”?

John Healey: Anyone in such broad potential circumstances might not be in a position to argue, in their single case, for an extension or alteration of what was set out as an appropriate time period for the pre-application consultation. However, they would be able to make a representation, if not to the promoter during the pre-application process, directly to the commission, as part of the process that it will undertake in its consideration of any application, which we will look at shortly.

Elfyn Llwyd: The Minister has been helpful. I said that the amendment was of a probing nature. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 ordered to stand part of the Bill.

Clause 41

Duty to notify Commission of proposed application

Question proposed,That the clause stand part of the Bill.

Jacqui Lait: Given that the Committee has agreed that there should be an infrastructure planning commission, the provision for consultation with the IPC prior to public consultation is to be welcomed, and would seem to be good practice. It will be a big change for many people, because we are probably all aware that many planning departments and local authorities are so overwhelmed that they positively discourage discussions before an application. In principle, pre-consultation discussion between the promoter and the IPC is a good idea.
However, I would like the Minister to reassure us on one or two points. One is the extent of the application. Would an applicant find themselves in difficulty with the commission if it emerged later on that information the applicant may inadvertently not have realised was needed was not forthcoming? To get a positive response, any applicant would obviously want to be as forthcoming as possible but, with the best will in the world, there are times when new information appears. We have already discussed the potential impact of that situation, and I am sure we will refer to it again.
The other aspect is whether, in having these discussions with the commission, an applicant will be able to suggest that it would be helpful if none of the information gets into the public domain while they are still thinking about the application. In any well-managed project, it is crucial that the information is managed properly. Any applicant will have serious experience of how that information should be managed. They could make inquiries of the IPC that are exceedingly sensitive. Such applicants would appreciate indications on the degree of confidentiality there would be for any question that they ask the IPC, however far-fetched and unlikely what they are talking about proves to be.
The applicant could be dealing with an area of new technology. We are not expecting that an application for a nuclear power station will suggest anything other than the tried and trusted technology. However, it is not impossible that somebody might manage to create nuclear fusion. Should there be a planning application for a nuclear fusion plant, it would be revolutionary and there would be implications for it. As I have said before, I am no scientist, but one can imagine that there would be implications for such an application that nobody has got their head around, other than those very bright people who can work out nuclear fusion. If there were such a proposal, an applicant would have to know that it would remain totally confidential at that stage.
I have given an extreme example, but it is not difficult to envisage a situation in which an applicant might wish to try out a new technology that would have implications beyond those that anybody with an interest in the land or any direct interest has thought about. It is that requirement for confidentiality about which I want the Minister to reassure us.

John Healey: The hon. Lady has set her concerns in such general terms that it is quite difficult for me to say that we can legislate to cover them. However, I will make two points in response. First, were someone to invent a nuclear fusion process, I doubt that the first people to hear about it would be members of the IPC in relation to a particular application. Were a new technology developed in the nuclear or the renewable sectors, there would be more of an issue over whether the relevant national policy statement was sufficiently comprehensive and up to date. Therefore, I think that the provisions of parts 1 and 2, in relation to national policy statements, are more relevant to her concerns than the problem of confidentiality.
Secondly, this is a quite narrow clause. It is about the duty of promoters to provide certain information to the commission in relation to the pre-application consultation. It is much more narrowly drawn than the general concern that the hon. Lady raises.

Jacqui Lait: I am grateful to the Minister for those points. I understand the reason for the clause and do not think that we will vote against it because it is necessary. However, the Minister is dismissing my concerns too easily. I accept that if somebody were to come up with workable nuclear fusion, it would be all over the front pages of even the most popular newspapers. My inquiry was about the possible consequences, were a revolutionary new technology to be developed. If there was a nuclear fusion plant, the whole of the grid could be affected. That would have serious implications. If an applicant went to the IPC, he would want that to remain confidential.
I am speaking in broad terms. Often it could be a very little thing. The implication of a development could have an impact that no one had considered because—although I cannot believe that this would happen—the applicant had discovered that the site contained some unique flora or fauna. My hon. Friend the Member for Newbury mentioned the Newbury bypass on several occasions. That road was held up on just that sort of basis and we have seen it time and time again.. I can accept what the Minister is saying in principle, but I seek an assurance that the IPC’s code of conduct will have serious controls over confidentiality.

John Healey: I think I understand the hon. Lady’s concerns although I do not share them either in general terms or in relation to the adequacy of the Bill. We will shortly debate aspects of clause 45(4), which allows the Secretary of State to make regulations about whether information about a request by a promoter for advice must or may be disclosed. I do not entirely share the hon. Lady’s concern because the developer will have to make public such information as is needed to undertake a proper consultation and to allow the public and others with an interest to understand fully and come to a view of the nature of the application. The IPC will want to ensure that that happens. I understand what she is saying about confidentiality for the developer, but he will have to disclose the range of relevant information so that people can understand what is likely to be proposed. I should have thought that the hon. Lady and the Committee would wish to see us insist on that as we try to do in the Bill.

Jacqui Lait: I am sorry that this is turning into a bit of dialogue. I will try to draw it to a conclusion. A developer would wish to be in control of the information process. He would not wish to be driven by the inadvertent disclosure of information by the IPC before he wanted it to come into the public domain. That is where the confidentiality is. I am assuming that a developer will go to the IPC before he goes to public consultation, so the IPC will have prior information. But it is surely not for the IPC to publish such information. It should remain in the control of the developer. If the IPC is not under a strict regime of confidentiality, that information stream would be affected. That is why I am so concerned to have assurances from the Minister that the IPC would be bound by confidentiality.

John Healey: I have no interest in keeping this dialogue going unnecessarily and if it helps the hon. Lady, I will reflect on what she said. But at the pre-application stage the promoter has responsibility for the materials that are produced. It is his responsibility to ensure that the consultation is thorough and properly conducted. The commission has the role of offering advice on that, which promoters would want to follow. It is not the commission’s responsibility to produce information on the consultation. That is rightly the promoter’s responsibility. I will reflect further on what the hon. Lady said about confidentiality and if there is a serious concern we will return to it later.

Question put and agreed to.

Clause 41 ordered to stand part of the Bill.

Clause 42

Duty to consult local community

Amendments made: No. 357, in clause 42, page 20, line 10, at end insert—
‘(2A) The deadline for the receipt by the applicant of a local authority’s response to consultation under subsection (2) is the end of the period of 28 days that begins with the day after the day on which the local authority receives the consultation documents.
(2B) In subsection (2A) “the consultation documents” means the documents supplied to the local authority by the applicant for the purpose of consulting the local authority under subsection (2).’.
No. 358, in clause 42, page 20, line 12, leave out ‘received by the applicant’.
No. 359, in clause 42, page 20, line 13, after ‘(2)’ insert
‘that is received by the applicant before the deadline imposed by subsection (2A)’.—[John Healey.]

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43

Duty to publicise

Question proposed, That the clause stand part of the Bill.

Jacqui Lait: I have a quick query on the proposal, Mr. Illsley. Has the Minister considered the use of the internet under the duty to publicise the application?

John Healey: The short answer is yes. The slightly longer answer is that it will be open to the promoters to use the internet as part of their publicity channels and as a way of consulting the public and other interested parties.

Question put and agreed to.

Clause 43 ordered to stand part of the Bill.

Clause 44

Duty to take account of responses to consultation and publicity

Clive Betts: I beg to move amendment No. 326, in clause 44, page 20, line 37, at end insert
‘and to a statement of impacts and mitigation made under section (Duty to identify and mitigate adverse impacts).’.

Eric Illsley: With this it will be convenient to discuss the following: Amendment No. 327, in clause 80, page 37, line 27, at end insert
‘, but in doing so must consider any statement of impacts and mitigation prepared under section (Duty to identify and mitigate adverse impacts).’.
Amendment No. 329, in clause 80, page 37, line 36, at end insert—
‘(b) to consider whether and how the range and comprehensiveness of the issues identified in any statement of impacts and mitigations prepared under section (Duty to identify and mitigate adverse impacts) and mitigations proposed thereto should be examined.’.
New clause 8—Duty to identify and mitigate adverse impacts
‘(1) Further to the applicant’s duties under section 42, the applicant must prepare a statement of impacts and mitigation identifying those effects of the proposed application that have been identified in response to the consultation under section 42 as adverse to the interests of respondents and the steps (if any) that the applicant proposes to take to respond to those impacts.
(2) For each instance of an adverse impact, the statement of impacts and mitigation must set out the applicant’s proposal for mitigating action to be taken by the applicant, or must state that no mitigating action is to be taken.
(3) A statement of impacts and mitigation may propose no mitigating action where it appears to the applicant that—
(a) the adverse impact is insignificant and mitigating action is not warranted, or
(b) mitigating action would be unreasonable due to disproportionate cost, adverse collateral effects on other interests or because it would be otherwise not in the public interest.
(4) The Commission must provide guidance to the applicants on the factors to be considered in identifying impacts and mitigating actions and on circumstances in which no mitigating action may be taken pursuant to subsection (3).
(5) In preparing the statement of impacts and mitigation, the applicant must have regard to—
(a) any relevant response received by the applicant to consultation under section 44(2), and
(b) any guidance given by the Commission under subsection (4).’.

Clive Betts: I am pleased to hear that attendance at our Committee sittings is having a beneficial effect on your health, Mr. Illsley.
In my previous amendments, I raised the issue of the Secretary of State rather than the commission being responsible for the ultimate decision on applications for national infrastructure projects, which the Government may have thought was contrary to their intentions. However, these amendments go very much with the grain of what they intend.
The Royal Town Planning Institute has been helpful to me in drafting the amendments and helping me to understand their general intention, which is to enhance the Bill to ensure that communities have a genuine opportunity to identify the impact of proposals at the earliest possible stage, to comment on them and to raise concerns about siting and design. It is relatively easy to make changes to projects at an early stage; any adverse impact identified by the community can be laid down very clearly at that point and the applicants must respond formally to it.
Amendment No. 326 relates to the pre-application stage. Pre-application consultation is essential; issues that may result in a fight at a later stage, with the two sides hardly listening to each other, can be dealt with in time to reach a compromise before things go any further. That would improve the entire process.
Communities should have the opportunity to identify issues at the earliest stage. The applicant must respond to those concerns formally, and if mitigation is not possible, explain why. Despite the importance that many planning authorities now attach to pre-consultation on ordinary planning applications, all too often those processes are neither effective nor real, as we as individual MPs have seen. They are sometimes little more than a sham. Although the community raises concerns, the applicant might hardly attempt to respond in any meaningful way and sometimes ignores them by talking about anything other than those concerns when responding to the planning committee. The amendments, therefore, would require the applicant to respond to such concerns in a proper way. They would not, of course, have to agree with those concerns, but they would have to answer them.

Elfyn Llwyd: I am following the hon. Gentleman’s argument and think that he is on to something important, but I would ask him to explain one thing. Subsection (3)(b) of new clause 8 states that
“mitigating action would be unreasonable due to disproportionate cost, adverse collateral effects on other interests or because it would be otherwise not in the public interest.”
In the event that the mitigating action is not taken, does the application fail?

Clive Betts: No. In the end, the issues of whether the applicant has taken reasonable steps to mitigate and why an applicant does not feel that mitigation is possible because of cost or other reasons are matters for the commission to take on board and determine. In the amendments, we are trying to structure the concerns of the community and the responses to those concerns and make the applicant respond formally to them by saying either that they can be mitigated, or if they cannot, why not. Of course, the commission will have that information to enable it to make a better decision and can, in the end, do so with conditions, such as deciding that mitigation is necessary, despite what the applicant has said.
That leads us to amendments Nos. 327 and 328, which are linked together appropriately. The process of identifying the issues from the community and the applicant’s response with regard to mitigation or non-mitigation continues beyond the initial pre-application consultation into the commission’s hearings. That process continues in the commission’s initial consideration, as laid out in clause 80, and then in the first meetings at which the commission brings the applicant and the main objectors together.
At those stages, the process of identifying the impact that the community is concerned about and deciding for or against mitigation for the applicant are considered as part of the commission’s initial view and the initial hearing that it holds. Having had the first meetings and the formal hearings, that process takes those issues through into the later processes of the commission’s consideration.
The Minister might have views about the appropriateness of that process and the wording of the amendments, but they are an attempt to ensure that communities see that there is less value in simply waiting and using objections as obstructions later in the process, and that there is every benefit in raising objections at the earliest possible stage, when concerns over details can be dealt with more easily and when the applicant is likely to be more responsive in dealing with those concerns. That also means that there is less benefit in simply trying to obstruct, rather than engage with, those opposed, and that applies to the applicant as well. There is much more benefit in trying to engage with the community and address concerns, rather than trying to ignore them and hope that somehow they will go away, be pushed to one side or not be properly focused on.
It would be helpful to target and focus not only at the pre-application stage, but in the remaining stages of the commission’s initial consideration and at the formal hearings themselves. With the amendments and the new clause, I am trying to lay down a process that has two fundamental objectives: one is to make the Government’s approach more effective and focused on the issues of real concern, and the other is to improve the perception, and the reality, that the community is involved. Any concerns that the community has should not simply be pushed to one side and ignored, but given proper attention and a proper response.

Jacqui Lait: This group of proposals is exceedingly important. I congratulate the hon. Member for Sheffield, Attercliffe for getting to the Clerks before we did on this issue. Unless the Minister comes up with a miracle, I will be pressing the amendments that I tabled. We think, as does the hon. Gentleman, that if we are to make any new system work, the duty to consult must be widened to include the duty to mitigate.
The best developers already seek to mitigate. I referred earlier to the Kent Wildlife Trust’s negotiation on a grid application. It managed to achieve the realignment of cable routes, to have the work timed to avoid the impacts on internationally important populations of migratory birds and protect breeding marsh harriers. It received a commitment to enhance the works to encourage biodiversity. It achieved those things because of its ability to negotiate with a responsible applicant before the inquiry.
My thinking on this area is influenced by a case in which a bottleneck was to be relieved on our overcrowded railways when Eurostar came through my constituency. There was a need to unblock the bottleneck at a point where the railway crossed a busy road with a station immediately on the other side.

Chris Mole: Shortlands.

Jacqui Lait: I am grateful to the hon. Gentleman for identifying the famous Shortlands, because I will be describing it in great detail. This case is a model of how such projects should be dealt with. Not only was there the busy road and the bridge with the station on the far side, we had green open space, some social housing, some detached houses and blocks of flats. There was just about every aspect that would concern a local population.
What was so impressive was that before the application was put in for the underpass that was required, consultants were brought in by Railtrack—rather than Network Rail. Well done to Railtrack for having had the foresight to do that. Before the application was put in, the consultants knew all the trees, animals, and flora and fauna in the open space.

David Curry: By name.

Jacqui Lait: Indeed, they probably christened many of them. The consultants had also worked out exactly when the work needed to be done, what impact it would have on the local residents and how to mitigate that impact. For instance, as the social housing was closest to where the heaviest work would take place, and by and large, railways are mended at weekends, the residents were offered money to go away for those weekends. For example, the developers would say, “We will pay for you to go away in weeks two, five, nine and 12.” The work was actually so fascinating that very few people took up the offer to go away and instead watched what was going on.
The residents of the blocks of flats were asked what could be done to mitigate the bad impact. Most of the blocks decided that they wanted secure parking, which is perhaps a reflection of the residents’ concerns. With the owners of the detached houses, it was decided what needed to be done, and remedies were put in place. The local council was the only objector when it came to the planning inquiry, as it would have liked a widened road at that stage. But, as the hon. Member for Meirionnydd Nant Conwy said, that is one of those areas where there could be no agreement, so it went to the planning inquiry and was dealt with speedily.
Dare I say that the only delay occurred in the Department for Transport, which also happened to be led by the then Deputy Prime Minister, and we were all agog at the speed with which he made his decision on that planning application. If it can be done in such a complex situation, I do not see why it cannot be done for every planning application. I am sure that that is what the Minister is hoping the responsible developers working on infrastructure projects will do, but unless he can reassure me that precisely that high quality of mitigation and resolution of problems before they get to a planning inquiry is covered by the term “consultation”, I will be keen for my hon. Friends to support the amendments.

David Curry: I am fascinated by the topographical detail of my hon. Friend’s constituency, but would she not accept that there is a close analogy between how effective consultation can work, and ineffective consultation cannot, in the transfer of social housing to new landlords? Where the council does its work well and everyone is consulted, often those transfers go through because people’s fears have been allayed, but where that is not done effectively, a no vote is often provoked. The irony is that a no vote is often to the detriment of the tenants themselves.

Jacqui Lait: I could not agree more. This may not contribute towards getting the discussion back into order, but my constituents were also the beneficiaries of social housing transfer early on: Broomleigh housing association is streets ahead of many associations in the service that it delivers to its residents. That shows how good consultation can work.
However, on the subject of the planning applications that we are discussing, we want not only to consult but to resolve problems, so that the number of objections to the applications can be limited, and the whole process speeded up. In a sense, I think that the Department has missed a trick by wishing to go down the quango route, rather than improving the way that the current system can be made to work.
The other implicit concern is that, where a statutory agency is the applicant, as I understand it, it is already somewhat constrained in how it can negotiate on compensation when it needs to buy up land property, as is the case for the Highways Agency. A closer look at that area is also needed. Obviously, the private sector can do deals, but it is more difficult for statutory or regulated organisations to do so.
I suspect that the result of not only wide, good, willing consultation but mitigation is that the front-end loading cost probably equals the back-end costs involved in application, challenge, judicial review, and all the other lengthy costs that have so dragged out our planning system. Within the system as it stands, if we could get that form of consultation and mitigation in place, the system would automatically speed up. That is why I support our amendments so strongly.
I hope that hon. Members understand that we feel very strongly that the Minister should accept the amendments and that we will invite the Committee to vote on all of them so we can at least try to get the Government to understand what we need in the planning system—whether or not we change it.

Daniel Rogerson: I very much welcome the fact that hon. Members have tabled the amendments and new clause 8. I congratulate the hon. Lady on finding something positive to say about that popular Conservative legacy to the nation—Railtrack. She did well to think of something.
The new clause and amendments get to the heart of the process of pre-application consultation. There have obviously been many areas of disagreement, and further matters of disagreement will arise about how that should operate and be improved. However, there has been agreement that the process of pre-application consultation is a positive aspect of the Bill and will ensure that the handling of such important planning applications is conducted more efficiently and effectively. Therefore, it is even more important to ensure that the process is absolutely right and that, acting on the Minister’s assurances that the process will be effective and will reach everybody in the community, problems identified by the local community are taken on board by the developer. Even if there cannot be an agreed resolution, at least that has been stated up front. The new clause and amendments would be particularly useful additions and I hope that the Minister accepts them. If he does not, I will certainly add my support to that of other hon. Members in seeking to make him do so.

David Jones: I add my strong support to the amendments. It is sensible, it will add considerably to the streamlining of the process, and it will give great reassurance to residents who might be affected by large-scale developments. My hon. Friend mentioned a positive experience that was local to her. I would like to mention an example in my constituency which was determined only this week: an application for the inevitable wind farm. As the Committee has probably gathered, there are a lot of applications for wind farms in my constituency. This one was for a large wind farm—not quite as large as those that would be determined under the new procedure, but nevertheless a significant development. In that case, there was grave concern about the potential impact of the development on flooding. A flood risk assessment was not done and the proposal was that flooding should be dealt with when granting planning permission by inserting a suitable condition to the extent that the developer should take all necessary steps to address the flood risk.
That was clearly and understandably completely unacceptable to local residents. Considerable reassurance would have been given to local residents if, as is proposed by the new clause, the developer was under a positive obligation to address the concerns of local residents about flood impact and if applicants had to state to the planning committee what they intended to do to address those concerns—for example, in terms of flood impact assessments and the necessary works resulting from those. As my hon. Friend said, that would have given considerable reassurance to local residents, speeded up the procedure and taken an important element of local opposition out of the equation.
In discussing the new clause, I feel that my hon. Friend and I have illustrated opposite sides of the coin. The net effect of both of our experiences is that if a developer can address local concerns at an early stage and can show to the planning authority what proposals he is making for addressing those concerns, we will have not only considerably more contented residents but a faster and more streamlined application procedure. I hope that the Minister will accept the new clause.

John Healey: I took at face value the hon. Lady’s assertion that she wanted to make progress. I understand that she feels strongly about this. I also understand that she wishes to dwell at some length on the example from her constituency. As constituency MPs, we all understand that.

Jacqui Lait: It will not get me a headline.
Robert Neill (Bromley and Chislehurst) (Con) rose—

John Healey: I do not know what the deadlines are for the hon. Lady’s local papers, but 10 am on Thursday may be a little late for this week. The hon. Gentleman, who obviously competes with her for headlines and coverage in the local press, wishes to get material for his press release, and so I give way to him.

Bob Neill: I just wanted to point out for the sake of completeness that my hon. Friend was entirely correct, not least because the railway line at Shortlands is the boundary between her constituency and mine.

John Healey: I feel a joint press release to the South London Press coming on.
My hon. Friend the Member for Sheffield, Attercliffe was absolutely right when he said that the pre-application stage in our proposals and the Bill is essential. He made a good general argument for that new stage when he said that it should discourage objections being used at later stages simply to obstruct progress in the consideration of any application and should encourage those with concerns or objections to raise them earlier in the process, when there may be more of an opportunity to consider them.
Clause 44 is therefore important because it requires promoters to have regard to responses to the consultation. It is backed by clause 32, which requires that an application must also be accompanied by a consultation report which, among other things, shows how the promoter has taken into account the points and the results of the consultation. It is precisely to deal with my hon. Friend’s worry that promoters may not respond to concerns that have been raised in a proper way that clauses 44 and 32 are in the Bill.
Showing how a promoter has taken into account the results of the consultation would include any changes the applicant has made to mitigate the effects of the original proposal. The hon. Lady, in the example of Shortlands—backed to the hilt by the hon. Gentleman—and in the example of the Kent Wildlife Trust demonstrated the value in the pre-application duty to consult, but she did not make the case for the duty to mitigate or for a prescriptive requirement to report on all the identified impacts to be on the face of the Bill.

Jacqui Lait: I did.

John Healey: But I am not convinced by it.
To reinforce the combined operation of clauses 44 and 32, there is also the duty for the promoter to have regard to any guidance that he may be given about pre-application consultation by the Secretary of State or the commission. Moreover, the commission must ultimately be satisfied that the pre-application consultation has been done properly before it accepts any application from a promoter. There is a power to guide and advise. There is also a pretty substantial point at which the commission may decide that the promoter has not done the job properly and so declines the application.
That reinforces the measure with a strong incentive for the promoter to take the pre-application process seriously and to get it right within the framework. As my hon. Friend rightly said, it is the role of the commission during the inquiry to consider the application in light both of the national statements and of any potential local impacts, including appropriate mitigation of those impacts that the promoter may be proposing to take as part of the application. As he said, this is the proper role for the infrastructure planning commission in its decision-taking role over an application. Where local impacts should be mitigated, the commission can set out the actions to be taken by a promoter as part of any subsequent consent order.

David Curry: How local is local? Much in the news at the moment is talk of a Severn barrage, which would have impacts for two sides of a huge estuary, and for miles east and west, and even north and south. What would be a proper definition of local in pre-consultation on a Severn barrage?

John Healey: I think that the right hon. Gentleman would accept that a proper interpretation of “appropriate consultation” and “local” will vary from application to application. I know that he was not with the Committee for some of our earlier proceedings, but if he looks at the Hansard for our debate on clause 39 earlier this morning, he will see that we dealt, not least off the back of some of the amendments tabled by the hon. Member for North Cornwall, with some of the concerns and issues around that point.
Finally, the combination of the two clauses in this Bill, together with the capacity for the commission and the Secretary of State to issue guidance, rightly sets out this pre-application stage as a new, required stage in the process of preparing and submitting applications for major projects. It sets out the duties for consultation, but avoids being over-prescriptive in the detail that is required in primary legislation.

Clive Betts: May I go back to what my hon. Friend thinks is the requirement of the legislation as it stands, particularly the second part of clause 44? It talks about the applicant having to have regard to any relevant responses. Does that mean that at that stage the applicant will have to go through the responses from any objectors from the community in general and reply in detail as to how they will mitigate those objections, or explain why no mitigation is necessary? Is there likely to be further ministerial guidance—he mentioned that when we were talking about the commission—once the legislation is passed to flesh out and enhance what is on the face of the Bill?

John Healey: The answer to my hon. Friend’s second question is yes. There is also likely to be, I suspect, guidance from the commission, although that will be a matter for the commission.
The answer to my hon. Friend’s first question is that there is the duty to consult in the pre-application phase; there is the duty to take into account in the way that it is done any advice and guidance that may be issued by the Secretary of State or the commission; and there is the duty, as part of the application itself, to demonstrate, through a report on the consultation, not just that the consultation has been undertaken, but how the promoter has taken into account the points that have been raised and the results of the consultation. That may include any changes that the applicant has made to mitigate the effects of the original proposal. However, it would not be right to include what the hon. Lady argued for, which is a duty to mitigate.

Jacqui Lait: I shall still press the amendment to a vote, because while the Minister has done a valiant job in trying to explain that an applicant will have to mitigate, it would be much clearer if that requirement were in the Bill. I can foresee a situation in which there is confusion between consultation and mitigation. Until the hon. Member for Sheffield, Attercliffe intervened, I thought that the Minister was going down that road.
Under the clause, any mitigation will potentially be decided at the inquiry stage by the IPC, rather than having been agreed to and put in place before the applicant comes to the IPC. Agreeing on mitigation before the inquiry would be infinitely more sensible. I am sure that responsible applicants would not object to a process under which mitigation must be put in place and signed off with the interested parties and then reported to the inquiry. It would then not be an issue for the inquiry.
The other area that strikes me and which the Minister did not address is the position of statutory bodies, such as the Highways Agency, compared with those in the private sector. As I understand it, such bodies are considerably more constrained in mitigation because of rules on the levels of compensation that they can pay. An awful lot of mitigation is about adequate compensation being agreed between the promoter and the individual who is affected. Many of the statutory organisations do not have the flexibility that private sector organisations have in settling such claims. Therefore, more problems will come before an inquiry than is necessary because of the rules that bind statutory organisations. On the grounds of best practice and of clarifying that consultation includes mitigation, I will press the amendment to a vote.

Clive Betts: I thought that we were reaching a point at which some agreement was possible on what my hon. Friend said. He indicated that there will be further ministerial guidance on how the process will operate. I do not want to put words in his mouth, but I understand him to be saying that under clause 44(2) there is no duty on the applicant to mitigate. However, when the applicant responds to the issues raised by the community in the pre-application consultation, he will have to explain where mitigation is thought to be appropriate and where mitigation is not possible, necessary or desirable. That will be a requirement on the applicant at that stage. That is the intention of the clause and it will be fleshed out further in the guidance to come. I am sure that the Minister will intervene if I am wrong. I understand that an explanation of why mitigation is or is not appropriate is part of clause 44(2), but that does not mean to say that there is not a duty to mitigate.

Jacqui Lait: My difficulty is that if mitigation is agreed before the inquiry, it can be reported that there is mitigation and that issue will not be part of the inquiry. If the applicant has to say in what cases there is a potential for mitigation, that will absorb the time of the inquiry because it will open up the debate. If that can be closed down before the inquiry starts because it has been legally resolved, the inquiry will be speeded up. That is why mitigation is important in planning law in general, not just in the Bill.

Clive Betts: The hon. Lady was beginning to lose me. My assumption was that anything that comes out of the pre-application stage—the consultation—even if the applicant is saying, “Yes, I agree with the community’s concerns and I will mitigate,” will be carried forward into the IPC’s consideration of those matters. Of course it will. It will be taken on board in the application, which will be amended accordingly if the applicant decides to mitigate. That seems to be a given.

Jacqui Lait: The difference is this. If mitigation is agreed before the inquiry stage, the applicant can report that the matter has been resolved. It is therefore not an issue and will not delay the inquiry. If, however, the applicant says, “It is possible that we can mitigate in the following few cases,” it potentially becomes an issue for the inquiry.

Clive Betts: Yes, but I am not sure how pressing the amendment to a Division improves that situation.

Jacqui Lait: There is a duty to mitigate.

Clive Betts: My understanding, and why in the end I certainly will not press my amendment to a vote, is that the Minister has said that he understands that although there is no duty in the Bill to mitigate, there will be a duty on the applicant to respond to concerns and objections raised as part of the pre-application consultation, and that will include both any indication of mitigation from the applicant and any indications that the applicant chooses not to mitigate, cannot mitigate or does not want to mitigate. As I understand it, that will be part of the response and that duty will be fleshed out further in guidance to come.
To bring this exchange to a conclusion, let me say that I am reassured by what the Minister said about the issues relating to mitigation and by the fact that there is further guidance to come on these matters both from Ministers and from the commission. I beg to ask leave to withdraw the amendment.

Hon. Members: No.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 12.

Question accordingly negatived.

Clause 44 ordered to stand part of the Bill.

Clause 45

Advice for potential applicants and others

Bob Neill: I beg to move amendment No. 232, in clause 45, page 21, line 10, leave out ‘The Commission may give advice’ and insert
‘The Secretary of State may, in connection with securing propriety, by regulations make provision about the giving of advice by an existing government body appointed for this purpose’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 233, in clause 45, page 21, line 15, leave out ‘Commission may not under subsection (1)’ and insert
‘body appointed by regulations under subsection (1) may not under that subsection’.
No. 234, in clause 45, page 21, line 17, leave out subsection (3).
No. 235, in clause 45, page 21, line 25, leave out ‘Commission’ and insert ‘appointed body’.

Bob Neill: The amendments deal with a concern that was raised by, among others, the Campaign to Protect Rural England. It has also been raised with me by a number of practitioners in the field of planning inquiries. The giving of advice is of itself a reasonable, sensible thing. Provided that pre-application discussions on planning matters are transparent, it is sensible to encourage them because they can iron out difficulties, avoid time being wasted and prevent excessive costs. It is also important to ensure that advice is available to interested parties. Increasingly, it is important to recognise the need—

It being twenty-five minutes past Ten o’clock,The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.